Select Committee on Home Affairs Written Evidence

10.  Memorandum submitted by the Children's Commissioner for England


  1.  The following evidence is based on meetings between the Children's Commissioner for England and asylum-seeking children and young people, as well as on key external research findings and reports. The Commissioner wishes to highlight for the Committee, certain worrying discrepancies between current UK immigration policies and practices on the one hand and domestic child welfare legislation and international human rights standards on the other.


  2.  The Children's Commissioner for England (hereinafter referred to as the "Commissioner") welcomes the current inquiry by the Home Affairs Select Committee on the subject of "Immigration Control". Since taking up office in June 2005, the Commissioner has identified the theme of asylum and immigration as one of eight policy priorities for his first year. [20]By the terms of the legislation that created the Office of the Children's Commissioner, the Commissioner is required to promote awareness of the view and interests of children in England, with particular regard, inter alia, to children's health, social and economic well-being, protection from harm, education and recreation. [21]The Commissioner also has the (non-exclusive) power to promote awareness of the views and interests of children in Scotland, Northern Ireland and Wales on non-devolved matters[22] and is the only commissioner with the power to conduct a formal inquiry into non-devolved matters (including immigration) where the case of an individual child in any part of the UK, raises issues of public policy for children in the UK generally. [23]In carrying out all of the above functions, the Commissioner must have regard to the 1990 United Nations Convention on the Rights of the Child, subject to any reservations entered by the UK.

  3.  Given this mandate, the Commissioner would like to bring to the attention of the Select Committee certain key policies and practices on "the enforcement of immigration control" which raise particular concern for the welfare and rights of both the children of asylum-seeking families and of unaccompanied asylum-seeking children. These submissions are based on first-hand meetings with children who have been subject to the policies and practice of the immigration system, as well as on evidence from a variety of external sources, including reports of Her Majesty's Chief Inspector of Prisons, [24]the report on the UK by the European Human Rights Commissioner, [25]in addition to research and learning from a wide range of voluntary organisations.


  4.  Research estimates that up to 2,000 children are detained with their families in the UK each year for the purposes of immigration control. [26]Moreover, while it is Government policy to refrain from detaining unaccompanied asylum-seeking children, other than in exceptional circumstances, large numbers of children are nonetheless being detained because of dispute over their age. A recent study from Cambridgeshire Social Services showed that of the age-disputed cases that were assessed in Oakington Immigration Centre between November 2003 and September 2004, nearly half were found to be cases involving under 18s. [27]This is consistent with referrals from the Children's Panel of the Refugee Council which found that 300 age-disputed young people were detained in 2003, of which 50% were later assessed to be children.

  5.  The Commissioner is extremely concerned about the impact of such detention on the rights and welfare of children who are seeking asylum, either alone or with their families in the UK. A recent visit by the Commissioner to Yarl's Wood Immigration Removal Centre, [28]revealed some of the trauma that children experience on being taken from their homes and placed in detention, without any explanation of what is happening to them. The reports of HM Chief Inspector of Prisons further highlight the detrimental impacts of detention on children's physical and mental well-being. [29]This is echoed in various research carried out by Save the Children, [30]Amnesty International[31] and Bail for Immigrant Detainees (BID) with Me«decins Sans Frontie"res (MSF). [32]

Age Disputes

  6.  The Commissioner strongly believes that there should be no detention of unaccompanied asylum-seeking children. The Immigration and Nationality Directorate (IND) should ensure that the practice of dealing with cases of age-disputes, reflects IND policy which favours the presumption that an individual is under 18 years of age where there is dispute. [33]The numbers of cases (see above paragraph 4) where children have been wrongly detained as adults, would however suggest that this policy is not presently reflected in practice.

Detention of Children of Asylum-seeking Families

  7.  The children of asylum-seeking families should only be detained as a measure of last resort and in such cases, for no more than a few days. This is the consistent recommendation of HM Chief Inspectorate of Prisons to the IND and one with which the Commissioner fully endorses. It reflects the principle in Article 37 of the UN Convention on the Rights of the Child, [34]to which the UK is a signatory party and to which the Commissioner must have due regard in the operation of his function. This is further supported by the UN Rules on Juveniles Deprived of their Liberty and UNHCR guidelines on the Detention of Asylum Seekers.

Alternatives to Detention

  8.  Alternatives to detention for immigration purposes are practiced in other EU Member States and internationally. These include the Assistance Appearance Programme and other forms of electronic tagging and monitoring. [35]The Commissioner is convinced that finding alternatives to detention is necessary in view of the Government's obligation under the UN Convention on the Rights of the Child to ensure that the "best interests of the child must be a primary consideration in all actions concerning children".[36]

Independent Welfare Assessment/Judicial Scrutiny

  9.  Both HM Chief Inspector of Prisons[37] and the European Human Rights Commissioner in his report on the UK, recommend that there should be an independent welfare assessment of the impact of detention on the physical and emotional welfare of each child in order to safeguard against the negative effects of continued detention. In the European Commissioner's report, he goes further still and calls upon the UK Government only to permit the detention of children upon the positive decision of a competent judicial authority having independently weighed up all relevant factors. [38]Given the inadequacy of current safeguards, whereby a child cannot be detained beyond 28 days without ministerial authorisation, the Commissioner encourages the Government to consider adopting the recommendations put to it by HMCIP and the European Commissioner. Indeed, the Commissioner would further add that the Government should consider conducting an independent assessment of the impacts that detention may have on each individual child, prior to any decision to detain.

Publication of Data

  10.  The current IND practice of publishing only "snapshot" data which provides information on the numbers of children detained on any given day is wholly inadequate. The publication of longitudinal data on the numbers of children detained for immigration reasons would greatly enhance the transparency of the immigration process. The argument that there are methodological difficulties in producing such data is not sustainable in view of the high public and policy importance of this issue.


  11.  In seeking to meet the targets for returning unsuccessful asylum-seekers, as set out in the Government's five-year immigration plan, [39]the Government has resorted to the use of policies and practices which risk violating the rights and interests of the children of asylum-seeking families. While the Commissioner recognises that he is not in a position to challenge how the Government manages migration and controls its borders, he is nonetheless concerned, from a child rights and welfare perspective, about the measures employed to reach the Government's targets. Two policies which are of greatest concern are the operation of section 9 of the Immigration and Nationality (Treatment of Claimants) Act 20[40] and the use of dawn raids on the homes of children whose families are due to be deported.

Section 9 of the Immigration and Nationality (Treatment of Claimants) Act 2004

  12.  Having met with children who are suffering the effects of section 9, the Commissioner urges the Government, in evaluating the success of the section 9 pilot programme, to consider the impact of this policy on the state's duty to children under both the Children's Act 1989 and the European Convention on Human Rights—specifically the right to family life under article 8.

  13.  Recent research by the UK children's charity, Barnardo's, has crucially highlighted that not a single family has yet been successfully "encouraged" to leave the UK as a direct consequence of the operation of section 9. On the contrary, 35 families have actually disappeared from social services placing the children of those families in an extremely vulnerable position, without access to education and basic services such as health provision and at worst, exposing them to the risk of harmful exploitation.

  14.  Local authorities interviewed in the Barnardo's study, also added their concerns in regard to implementing the legislation; primarily, that implementation would conflict with their duty of care towards children in local authority areas and could cause them to be the potential target of judicial challenge. The future financial burden on local authorities associated with implementing section 9 has been noted as a further source of concern.

  15.  A comprehensive evaluation of section 9 must therefore be a matter of urgency for the Government in order to safeguard the well-being of children who fall into these situations and ensure the full implementation of the "Every Child Matters" framework.

Dawn Raids on Homes

  16.  Dawn raids on the homes of children, for the purposes of taking unsuccessful asylum-seeking families into detention prior to deportation, are having serious consequences for the health and mental well-being of affected children in the UK. The Commissioner has listened to and heard of stories from children who have been traumatised by the presence of uniformed immigration officers in their homes in the early hours of the morning, by the sight of their parents being handcuffed in their presence and in at least one instance, of the presence of immigration officers in their bedrooms. The upset of being taken into detention without time to gather personal belongings or say goodbye to friends can be emotionally scarring for the children involved. For many, this is the last farewell to the only place that they know as home.

Return of Unaccompanied Asylum-seeking Children

  17.  The Commissioner is aware that the Government is currently in the stage of developing pilot programmes to return unaccompanied asylum-seeking children, whose claims for asylum have been unsuccessful. The risks of returning children to countries, such as Albania or Vietnam, including exposing children to the risks of trafficking, are deeply concerning.

  18.  Any proposals to remove unaccompanied asylum-seeking children from the UK to their countries of origin must be based on the principle of the "best interests of the child" and the Government should additionally seek to place itself in a position to effectively monitor the outcomes of children who are returned under this scheme and to share these findings publicly.

5 December 2005

20   The seven other policy areas are: children in society; disability; bullying; health and well-being; youth justice; education; black and ethnic minority issues; and vulnerable children. Back

21   Children's Act 2004, s 2. Back

22   Ibid, s 5, 6 and 7. Back

23   Ibid, s 3, s 5(4), s 6(4) and s 7(4). Back

24   Report on an announced inspection of Yarl's Wood Immigration Removal Centre, 28 February-4 March 2005, London: HM Inspectorate of Prisons, 2005; Report on an announced inspection of Tinsley House Immigration Removal Centre, 1-5 November 2004, London: HM Inspectorate of Prisons, 2004; An inspection of Dungavel Immigration Removal Centre, London: HM Inspectorate of Prisons, 2002. Back

25   Report by Mr Alvaro Gil-Robles, Commissioner for Human Rights, on his visit to the United Kingdom, 4-12 November 2004; Council of Europe, June 2005. Back

26   Crawley and Lester, 2005, "No Place for a Child", published by Save the Children UK, February 2005. Back

27   IbidBack

28   31 October 2005. Back

29   Supra n 4. Back

30   Supra n 6, see particularly section 2 of the report. Back

31   UK: Seeking asylum is not a crime: Detention of people who have sought asylum, June 2005, Amnesty International. Back

32   Fit to be detained: Challenging the detention of asylum-seekers and migrants with health needs, Bail for Immigration Detainees and Me«decins Sans Frontie"res, May 2005. Back

33   Note on Unaccompanied Asylum Seeking Children, Immigration and Nationality Directorate,<au,0.5><xuapplications/unaccompanied<au,0.5><xuasylum.html Back

34   Article 37 UNCRC states that children should only be deprived of their liberty as a last resort. Back

35   Supra, n 6. See section 4 of the report. Back

36   Article 3, UNCRC. Back

37   See reports on Tinsley House (2004) and Yarl's Wood (2005). Back

38   Report by Mr Alvaro Gil-Robles, Commissioner for Human Rights, on his Visit to the United Kingdom, 4-12 November 2004, paragraph 60, page 20. Back

39   Controlling our borders: Making migration work for Britain, February 2005. Back

40   Section 9 is being piloted in local authority areas in London, Greater Manchester and West Yorkshire. Back

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